Appointment to the Judiciary Nomination Procedure: Statements

I remind the House that, since 1922, this State has had a robust and independent Judiciary. I am pleased to underline the widely held view that the Irish Judiciary is now and has always been one of the great successes in our history and is consistently among the top ten independent judiciaries globally.

Judicial appointments are made in accordance with Articles 13.9 and 35.1 of the Constitution, Bunreacht na hÉireann, by the President acting on the advice of the Government. This constitutional function cannot be transferred or delegated. Government, in making the decisions necessary to nominate people for judicial appointments, is performing a very profound function under the Constitution and one which is fundamental to our separation of powers and to the maintenance of independence and public confidence in our Judiciary. The effectiveness of the performance of this function by successive Governments has been illustrated by the extraordinary quality of our Judiciary and the public respect in which it and its independence is held. Fundamental to the making of any decision in this area by Government is the intent to nominate the best person for a particular judicial appointment and this is what happened when Ms Máire Whelan was nominated by Government for appointment as a judge of the Court of Appeal.

A vacancy for an ordinary judge of the Court of Appeal arose following the retirement of the Honourable Mr. Justice Garrett Sheehan on 23 March 2017. In response to a request received from the then Minister for Justice and Equality, the Judicial Appointments Advisory Board, JAAB, reported on 16 May 2017 that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal. Last week, at its meeting of 13 June 2017, the Government nominated the then Attorney General, Ms Máire Whelan, Senior Counsel, for appointment as an ordinary judge of the Court of Appeal. The Government acted entirely within its constitutional powers and responsibilities in making this nomination. The constitutional prerogative on whom to advise the President to appoint as a judge rests with the Government alone. On Monday, Ms Justice Máire Whelan was appointed by the President as a judge of the Court of Appeal. It would not be appropriate for me, as Minister for Justice and Equality, to comment any further on specific nominations to judicial office, which are decisions made by Government and which are subject to Cabinet confidentiality under Article 28.4.3° of the Constitution. The Government has sole discretion under the Constitution to nominate persons of its own choosing, provided they are qualified and eligible for appointment as a judge.

I would add that I have been surprised in recent days to hear experienced Members of this House, some former Ministers, and people outside this House clamouring for Ministers and for Government to lay down, itemise and publish the A to Z of what did or did not happen around the Cabinet table or in the deliberations of Cabinet leading to the decision made on 13 June. It is abundantly clear that such matters are covered by Cabinet confidentiality under Article 28 of the Constitution. Also, to set the record straight, this Cabinet confidentiality is a requirement of the Constitution, not a privilege of the members of the Government for the time being that they can choose to waive at any whim or any time.

I am also surprised about experienced people banding about information that some number of High Court judges may have expressed interest in the Court of Appeal vacancy and asking what happened to these expressions in the Government decision-making process. Not only is that also covered by Cabinet confidentiality, but, in fairness to any such member of the Judiciary who may have expressed such interest in respect of any such vacancy in the past, we are hardly going to lay out for political and public consumption the names and details of serving judges who have chosen to put themselves forward for more senior posts. Would we not rightly be castigated for doing such?

I and others have stated countless times that we are satisfied that all necessary procedures regarding judicial appointment have been followed. In the instance of last week, I am also satisfied that the new judge, having regard to her qualifications and breadth of experience, will make an invaluable contribution to the work of the Court of Appeal. This is what has happened up to this point.

I will now refer to what the Government wants all of these processes to look like in the future on foot of a fundamentally reformed system, heralded by the publication of the Government’s Judicial Appointments Commission Bill on 31 May 2017. Deputies will be aware that on 30 May 2017, the Government approved the publication of the Judicial Appointments Commission Bill 2017 which has now been circulated to Deputies. The Bill will deal with all judicial appointments, including the promotion of serving judges which are currently outside the remit of the Judicial Appointments Advisory Board.

The legislation arises from a public consultation process on a review of the judicial appointments system in 2014. The need to ensure and protect the principle of judicial independence was a significant factor in this consultations process. It was also recognised that, while the Judicial Appointments Advisory Board process was a model of best practice in its day, almost 20 years from its establishment it was considered worthwhile to review the manner of its operation. The focus of the Bill is very much on the manner in which the selection, recommendation and appointment arrangements can be improved in a new statutory framework. I am keen to ensure that the entire judicial appointments system is enhanced to ensure it reflects current best practice, that it is open, transparent and accountable and that it promotes diversity. The Bill is also intended to give effect to the commitments in A Programme for a Partnership Government, that is to replace the Judicial Appointments Advisory Board with a new judicial appointments commission, to include a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas committee, and a lay majority including independent people with specialist qualifications, to reduce the number of suitable candidates proposed by the judicial appointments commission for each vacancy to not more than three candidates.

Deputies will be aware that Second Stage of the Bill is scheduled for next week in the House. I look forward to debating with members the very significant and innovative measures Government has agreed to reform entirely the system of appointments of judges in this State. The Bill provides for 13 members of the judicial appointments commission, two more than the general scheme provided for, made up of three senior judges - the Chief Justice, the President of the Court of Appeal and the President of the High Court - the Attorney General, a nominee of the Bar Council, a nominee of the Law Society, six lay members recruited through the Public Appointments Service, PAS, and a lay chair also recruited by PAS. Working through a system of committees, the commission will have a dual role of making recommendations for appointments, and by way of published statements, the ongoing development of selection procedures for judicial appointment and of the skills and attributes that may be required of judges. The Bill will reduce the number of suitable candidates proposed by the commission for each judicial vacancy to three candidates from the stipulated minimum of seven now under the current JAAB system.

Under the Constitution, the Government retains discretion to appoint but, in a replication of the Judicial Appointments Advisory Board, JAAB, provisions, the Bill will provide that Government must have regard first to the recommendations of the new commission. Most importantly, merit is provided for in the new legislation as the criterion for selection and recommendation, and subject to that, the Bill provides for the objectives that the Judiciary should be equally comprised of men and women and that it should reflect the diversity within the population of the State.

I look forward to the debate on the Second Stage of this Bill and to making progress. Indeed, I invite Members of this House, from all parties and none, to have this Bill debated in a constructive environment with the aim of putting in place a model of best practice. I am asking for the support of the House on the scheduling of the legislation. I am asking for the Business Committee to ensure every effort can be made to have this legislation debated and that the Dáil facilitates and expedites the process, leading to its passage at the earliest opportunity.

The Minister, Deputy Flanagan, and the Tánaiste have been Members of this House for a long time. In fact, they both were Members in 1994 when there was considerable political controversy about the appointment of an Attorney General to judicial office. On that occasion Fine Gael, then in opposition, demanded a debate into the appointment of the person to the presidency of the High Court. That debate took place on 15 November 1994. During that debate, Fine Gael stated, in my opinion, correctly, that there was no convention entitling an Attorney General to be appointed to any judicial office. Fianna Fáil, in government at the time, acknowledged that irrespective of whether there was a convention, it should no longer continue into the future. As a result of that political controversy, the Oireachtas decided in 1995 that the law should be changed. It was decided by the Oireachtas to reform significantly the system whereby judges are nominated and appointed in Ireland. As a result the Courts and Court Officers Act was enacted in 1995. It established a Judicial Appointments Advisory Board. The purpose of that board was to act as a recommending and filtering process. If individuals were interested in becoming a judge, they had to apply to that board for it to assess whether they met the qualifications and suitability criteria. If they did, their names were then recommended to the Government which, as the Minister, Deputy Flanagan, stated, has the constitutional power to nominate for appointment.

It is of particular note to recall that the legislation introduced in 1995 specifically included a provision about what should happen if the Attorney General is interested in nomination and appointment to judicial office. That makes sense because the reason there was the political controversy, the reason the law was changed, was because we had an Attorney General who had wanted to and did attain judicial office.

Since 1995, the Judicial Appointments Advisory Board has played a significant role in how judges are appointed in this country. It has had a beneficial role. It has been in existence for 22 years. During that period hundreds of judges have been appointed in this country. I have tried to calculate how many. It is difficult to do so but when I tell the House that there are 157 judges at present, I think Members will agree there must be between 200 and 300 persons who have been appointed to judicial office in this country since 1995. In those 22 years, every person who has been appointed to judicial office has gone through the Judicial Appointments Advisory Board, except for two people. We are talking about hundreds of judicial appointments and throughout that period, only two people were not appointed after having gone through the Judicial Appointments Advisory Board process. The first was in 2004, when a person who was not an Attorney General became available and, correctly, was grabbed by the Government immediately. There was no objection from any individual from any quarter to his nomination or appointment. The only other exception was in respect of yesterday's appointment.

However, yesterday's appointment was unique because it was an Attorney General who was appointed to judicial office. Do we not remember that the reason we got into the political controversy in 1995 was because it was an Attorney General who had sought office? Do we not remember that the reason the law was changed, and why section 18 was specifically included, was because it was known that there is political controversy when an Attorney General seeks judicial office? I listened to the Taoiseach earlier today stating that he was interested in history because it teaches us about the future. He must, if he has an interest in history, look back to see what happened 22 years ago and it is because of that that the decision of the Government eight days ago was so surprising. In short, what happened was that the Government deliberately decided to evade the law. They circumvented the law. That is why it is laughable for the Government to suggest that it followed correct procedures.

It is also important to note that if the Oireachtas establishes a statutory scheme which is to regulate or emphasise how the Government is to perform its functions then it is incumbent upon the Government to follow that statutory scheme. If it is the case, however, that there will be a parallel scheme whereby an Attorney General can apply for office, why cannot anyone else go by that parallel scheme as well? It is incumbent on the Government, if it is the case that there is this unknown parallel scheme, to publish it to make the public aware of it in order that other individuals can apply under that same scheme.

I say here today - this does not breach any principle of Cabinet confidentiality because it appears that the three judges who it is thought applied did not get their curricula vitae even considered by the Cabinet - it was grossly unfair on other individuals who applied for and who expressed an interest in this position that the Government did not even get to consider it. It is not correct for the Government simply to state that correct procedures were followed. Not only were correct procedures not followed but fair procedures were not followed. It is known that the former Attorney General was permitted by the Government to remain in the room while her nomination was being discussed. That tainted it with the perception of unfairness and bias. It is not fair to other individuals who did not get their nominations before the Government and who wanted to be considered that they were not permitted to be in the room.

A number of questions must be answered and I will set them out in the hope of getting answers from both the Tánaiste and the Minister for Justice and Equality. First, were letters expressing interest in the vacancy sent by members of the High Court to the Government? If so, who received them and when were they received? That does not infringe in the slightest any principle of Cabinet confidentiality.

Second, it is known that on 23 May, the Government nominated seven persons to fill vacancies on the High Court, the Circuit Court and the District Court. Some of those vacancies had not yet even occurred. In fact, one of the vacancies arises in October next. Why did the Government not fill the Court of Appeal vacancy on 23 May? We have just learned for the first time from the Minister, Deputy Flanagan, that JAAB informed the Government prior to that date that the board was not recommending any person for the Court of Appeal position. Why then was the Court of Appeal position not filled on 23 May?

Third, did the then Tánaiste and Minister for Justice and Equality discuss the vacancy on the Court of Appeal with the former Attorney General prior to the Government meeting on 23 May?

Fourth, did the Judicial Appointments Advisory Board tell the then Minister for Justice and Equality that it wanted a judge of the High Court to fill the position on the Court of Appeal? We know that the Government was aware, prior to the meeting on 23 May when other judges were nominated, that the Judicial Appointments Advisory Board was not recommending anyone. Presumably, it must have been known by the Tánaiste that the reason they were not recommending anyone was because they wanted a High Court judge nominated.

Fifth, who decided that only one name would be brought to Government and why did the Government not get to consider the other applicants who it is known put in applications to be considered for this position?

Sixth, who was aware before last Tuesday's Cabinet that this was happening? We know the Taoiseach was aware. He told us today that he was aware the evening before. We know that the former Taoiseach was aware. We know the Tánaiste was aware and we know the former Attorney General was aware. We need to know who else was aware, and when and where they discussed these issues prior to the Cabinet meeting on Tuesday last.

Seventh, why, at Cabinet, did no one say, "This is unusual". There are members of the Cabinet who have been members of Government for six years. This is the first time that any lawyer was appointed to court as a judge without having gone through the Judicial Appointments Advisory Board process. Did anybody ask why this application and nomination did not go through the Judicial Appointments Advisory Board process?

Also, why was there no formal memorandum for Government in respect of this nomination?

Eighth, why did someone in Government not ask the former Attorney General to leave the room? As I said previously, fair procedures require that a person should not remain in the room while the candidacy of that person is being discussed. Even if there was only one person before Cabinet, there is the possibility, even with this Cabinet, that someone might raise a question or an objection in respect of the candidacy.

That brings me to my ninth and final point, and I say this appropriately. Two unusual decisions were made at this Cabinet meeting. First, we had the unusual decision to nominate a person to judicial office who had not gone through the appointments board; and, second, we had the unusual decision that it was going to be announced that one Garda station was re-opening. I want to know if those decisions were related. There may not be hard evidence, but there is considerable circumstantial evidence suggesting that they were.

This is a sorry saga, but it is one caused by the Government, and responsibility for it lies with the Government. The Government circumvented the law. If the Government had applied the law the way it has been applied for the past 22 years, we would not be here this evening. I know the Government wishes to emphasise the importance of the Judiciary and how this House respects it. This House does respect the Judiciary, but it brings it into disrepute if Government does not apply the correct laws in place for the nomination and appointment of judges.

The Minister for Justice and Equality said that he hopes we will be able to engage in respect of the new process involving the judicial appointments commission Bill that he intends to bring forward next week. I put it to the Minister that I have lost trust in the Government's ability to have any responsibility for judicial appointments in future.

First, I wish to remark on the fact that Deputy Micheál Martin of Fianna Fáil is not present for this exchange.

He is in Brussels dealing with Brexit.

Since he shouted so loudly for this opportunity, I am surprised at him.

Where is Deputy Adams?

I am also interested to hear, as this narrative has unfolded, from Fianna Fáil that this matter is not now a breach of the confidence and supply agreement, which of course facilitates the Fine Gael Members sitting on the Government benches.

To be clear, there is no suggestion nor has there been any suggestion-----


Please continue, Deputy McDonald.

There has been no suggestion that anything unconstitutional has been done by the Government. Let us not go off on a wild goose chase in that regard. What has been said, and what is absolutely apparent is that the Government deliberately and wilfully circumvented the law. To be precise, I am referring to the Court and Court Officers Act 1995. Deputy O'Callaghan has set out the content of that legislation. The members of Cabinet know that is what happened.

The Minister for Justice and Equality told us in his very long-winded way to mind our own business - at least, that is how it sounded to my ear. He said that the JAAB reported on 16 May last that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal. That is fine. The Minister then went on to say that at its meeting of 13 June 2017 the Government nominated the then Attorney General for appointment to the position in question. That is fine. The only difficulty is that the controversy resides in what happened in the space in between.

To whom did the former Attorney General express her interest in this position? Did she come forward? Alternatively, did someone, for example, a member of Government, approach her and suggest that this might be the right position for her? Were there other applicants for the post? We do not need their names and certainly we do not need to have debate on the merits, relative merits or de-merits of any candidate or their qualifications. That is not our business in this Chamber. However, we ought to be told whether there were other applicants. If there were, to whom did they express an interest? What precisely was the procedure and process employed to decide and evaluate the quality of their candidacy?

We need an answer to how it is that there could be any pretence of any kind of fair procedure when the successful applicant sits at the table, albeit as the only name coming forward, when the decision to appoint is made. That is simply off the wall. Anyone with experience in the local residence association, GAA club or tiddlywinks association knows that simply does not happen. How is it that in this case the successful applicant was present? We should remember this for the people we serve and the people the Cabinet serve, including those who are looking on. What would they figure had they applied for a job and been unsuccessful, but the successful applicant sat on the panel when the decision was made? They would rightfully be asking questions about fair procedure.

There is no attempt to question the constitutional prerogatives of the Government. All of us understand that those are necessary prerogatives for our system to work. Let us take that off the table. The Minister for Justice and Equality spoke convincingly about the sole discretion of Government to make such appointments. He said of Cabinet confidentially that it is not à la carte or at the discretion of individual Ministers. He said that it is an absolute constitutional imperative and requirement. The Minister is absolutely right on all of those counts.

Riddle me this then because today we discover that the Taoiseach had a conversation by telephone with Deputy Micheál Martin. This came to light on the floor of the House earlier. In that conversation, it seems that Deputy Micheál Martin said to An Taoiseach that the individual in question was unsuitable and so on and so forth. I believe that is a serious matter and raises serious questions not only for the Government, but for Deputy Micheál Martin to answer. Was the leader of Fianna Fáil attempting to influence Government in respect of a judicial appointment? Is that lawful? Does that respect the prerogatives of Cabinet? Was it appropriate for An Taoiseach of a Sunday to have a discussion by telephone with the leader of Fianna Fáil, who is not a member of Cabinet, on the matter of an appointment to the Bench, a matter in which Cabinet enjoys sole discretion?

Is Deputy McDonald jealous?

Is it a belief on either side of Fine Gael and Fianna Fáil that this confidence and supply agreement somehow confers authority on the leader of Fianna Fáil to have a say on who might be appointed to the Bench?

There is no doubt that the appointment of the outgoing Attorney General smacks of a political appointment. I think it stinks to the highest heavens of the scent of cronyism. However, it looks to me as though Deputy Micheál Martin's only concern is that it was not his political appointment. That is deeply troubling too. We want an explanation from the Government as to why it was that An Taoiseach was having conversations with the leader of Fianna Fáil on the matter of appointment to the Bench. We want to know from Deputy Micheál Martin, who was all consumed and concerned about adherence to the law and to the Constitution, as to how and why he imagines that he has a special prerogative to lean on Government in any way to influence such an appointment. Those questions need to be answered.

In what we might refer to as the real world people know, notwithstanding the quality of the Judiciary, so extolled by the Minister, dating back to 1922 and the quality of so many people who have served on the Bench, that there have been political games played with appointments. It is an open secret. In fact, it is a recognised problem because there is a proposal to reform and overhaul the system.

It is well known that Fine Gael and Fianna Fáil would use these appointments as political baubles for those who adhere to their particular world view. That is what happened and well we know it. The other news is that in the real world, people are not prepared to tolerate that any more. They almost grimace at the irony of the fact that it would be Fianna Fáil presenting itself as a champion of accountability and probity on these of all matters.

That said, it should not take from the very serious situation in which we find ourselves now. We need answers to the question as to why the Government circumvented the law - not the Constitution but the 1995 Act. That is what it did.

Deputy McDonald agrees with us, then.

We need to know why it was that the successful applicant was seated at the table of decision at the time of decision. We need to know why the new Taoiseach, Deputy Varadkar, breached Cabinet confidentiality - as it seems to me - compromised the sole constitutional prerogative that the Minister has set out in a conversation with the leader of Fianna Fáil, not a member of Cabinet, albeit he is keeping all of the Ministers in Cabinet, on a matter of an appointment to the Bench.

It was raised in the Dáil.

How is that possible? Our Fianna Fáil colleagues may wish to look at the transcripts from this morning.

Deputy McDonald should look at the transcripts from last Wednesday.

It was very clear that the conversation was not just a casual tête-à-tête between the leaders of Fine Gael and Fianna Fáil.

Like you and Gerry.

It was very directly an attempt by Deputy Micheál Martin to prevent an appointment to the Bench by Government. He does not have the right or the authority - legally or constitutionally - to intervene in that way.

He has the right to ask questions.

He has the right as leader of the Opposition.

Tá an t-am caite.

The great tragedy, a Leas-Cheann Comhairle, mo bhrón, mo bhrón, mo chomhbhrón, is that he is not here to answer those questions himself.

Deputy McDonald cannot circumvent the time. I call Deputy Brendan Howlin, who has ten minutes.

A Leas-Cheann Comhairle, on a point of order-----

What is the point of order?

The leader of Fianna Fáil, Deputy Micheál Martin, is in Brussels tonight.

That is a point of information.

There is no such thing as a point of information under Standing Orders.

It is a point of information to the House. There was a smear attempt on Deputy Micheál Martin and I wish to-----

He was here last night and had an opportunity-----

A point of information has got to be relevant to the proceedings.


Can I have my clock restarted?

If the debate was allowed last night during our Private Members' time, he would have been here. He has a prior engagement in Brussels tonight.

Point of information taken. I call Deputy Brendan Howlin. Start the clock.

Where is Deputy Adams?

He is up in Louth. He is attending talks on government formation at Westminster.

I have no wish to tell the Leas-Cheann Comhairle the rules of the House, but there is no such thing under our Standing Orders as a point of information.

At the outset, I want to make one thing absolutely clear. I have known Ms Justice Máire Whelan for many, many years.

She is a member of the Deputy's party.

She is a person of integrity and passion, with a steely determination and an absolute commitment to leaving our nation a better place than she found it. I knew her back when I was drafting the Civil Unions Bill in 2006. Her immense experience in the area of family law was invaluable in helping us to draft the legislation that became the precursor for civil partnership legislation, which, in turn, preceded the marriage equality referendum. I still knew her after Fianna Fáil had crashed the economy when she had drafted the legal textbook on the NAMA legislation. Her knowledge of the complexities of property law and conveyancing are clearly apparent from that seminal text. Of course, I came to know her immensely well indeed during my time serving in government alongside her. I was able to get whistleblowing legislation, freedom of information legislation and legislation on the regulation of lobbying with her invaluable assistance. Outside my then Department, there was the X case legislation, the wordings for the children’s rights and marriage equality referendums and many more fine pieces of work. From dawn until late at night, she was available to the entire Cabinet as an adviser, a counsellor and an expert on legal affairs. I have the height of respect for her and I am absolutely convinced that she will make a very fine judge indeed.

Some people who do not seem to have read either of the Fennelly reports will say that she came out of them badly. However, those who have read the reports will know this is not case.

That is ludicrous. Deputy Howlin clearly has not read the report.

It is true to say that, in his first report, Mr Justice Fennelly appeared to raise a quizzical eyebrow at those of us in government who reacted so swiftly and decisively when we were told that Garda telephone conversations were being recorded right across the country. It would have been bizarre not to have looked askance at such a development. To categorise as alarmist those who were alarmed, as the judge seemed to do in this first report, seems to me to be unfair, particularly given that Mr. Justice Fennelly had decided to postpone until his second and final report any consideration of the question as to whether the then Attorney General's fears of illegality were justified. In the event, when one reads his key findings on that question, one must conclude that the then Attorney General's response was not just legitimate but that it was the only legitimate response. The key findings of the Fennelly report were: that the installation and operation of the telephone recording system in Garda stations up and down the country were not authorised by common or statute law and were therefore illegal; that the recording system operated in breach of the Constitution and of constitutional rights; that it breached the European Convention on Human Rights; and that it also breached substantive European Union law and the EU charter itself.

That there was, for decades, a scheme for surreptitiously recording telephone calls in Garda stations, without any official authorisation or legislative underpinning, amounts in anyone’s language to a wholesale violation of the law. This was quite properly a matter of utmost concern to the previous Government when this was discovered. The quite incredible finding was that gardaí at operational level somehow managed to maintain and operate a legally unsanctioned and unconstitutional recording system unbeknownst not only to the Minister of the day but also to their own Commissioner and to senior management. Even taken at face value, these findings point to a profound failure of governance within both the Garda and the Department of Justice and Equality.

There are some in this House who are willing to go further and utterly traduce the reputation of any person in search of headlines. To do so in the case of Ms Justice Whelan is truly wrong.

I heard Deputy Micheál Martin do exactly that yesterday afternoon. In listing off the judges for whom he has respect, one thing was immediately noticeable, namely, that they are all men.


Do not play that card.

This is outrageous.

It has to be said that there has been more than a whiff of misogyny about some of the comments we have heard in recent days. Even more, there has been a stench of political opportunism. Not for the first time, in recent days we have seen Deputy Micheál Martin’s willingness to send out his own senior counsel onto "Morning Ireland" to march Fianna Fáil up a hill. The confidence-and-supply agreement had been breached, we heard, again. In December of last year, we were told the agreement had been breached over the failure to advance his Judicial Appointments Bill. In April, we heard the agreement had been breached over the water issue.

This week, we heard it had been breached over a judicial appointment. Frankly, it has become embarrassing to hear Fianna Fáil’s successive claims of outrage, each of which is predictably followed after a couple of days by a quiet climb-down.

The Labour Party has a monopoly on embarrassment.

Whether over the Garda Commissioner or this matter, Deputy O'Callaghan is sent off to play the part of the Grand Old Duke of York. He marches the Fianna Fáil Party up to the top of the hill and then he marches it back down again while Deputy Micheál Martin decides on which side of the issue he stands.

Deputy Howlin is on the hill. They will bring him up the hill anyway.

I have spoken warmly about Ms Justice Whelan this evening because I think she will make an excellent judge. That does not mean that I think that the events that led to her appointment to the Court of Appeals were in order.

Deputy Howlin agrees with us then. He should make up his mind.

I have said and I believe that the lack of a transparent process was absolutely wrong. It is unfortunate that her appointment as a judge has been overshadowed by a political row. For 20 years and more, the Labour Party has been committed to improving openness and transparency in public life. Arguably, we have done more than any other party to seek to raise standards in public office, to make appointments and employment more transparent and accountable and to prevent people from abusing power and positions of responsibility.


To truly champion the highest of standards, we must do so on every occasion-----

Which side is the Deputy on?

-----even when we know and we like the people directly involved. Unfortunately, it seems that no objective test was applied in this particular case. That has raised question marks about whether other qualified candidates had their applications handled in an objective and transparent manner. It has at least appeared to link this appointment to the reopening of the Stepaside Garda station, which naturally raises further questions.

That brings me to another point I want to make. The Minister, Deputy Ross, used to sit on the Opposition benches. Whether in this Chamber in opposition or in the other Chamber or in his long-running newspaper column, we all know what his reaction to this event would have been, but the arch-critic has now gone mute. Content to play the parish pump, with his much-vaunted principles cast aside, as ever, the Minister sat on his hands when Cabinet made this decision. When it then caused public controversy, he asked for a review of the decision he participated in. Therefore, a review we will have, and the Minister, Deputy Ross, can keep his principles. The Taoiseach should add the title "Minister for reviews" to his job description, for all the difference they have made. The Independent Alliance has secured several such reviews. We have had the review of cardiac services at Waterford hospital, an independent review of the Garda that never even started, the independent review of the corporate tax system, which was supposed to be due by now but has not appeared, the review the Minister, Deputy Ross, started about the Olympic ticketing scandal, which was due by the end of 2016 but has not appeared, and now a review about how judges are appointed.

If people wanted reviews, they were right to vote for the Independent Alliance. If they wanted action, they have been sorely let down. A year on in power, they still have little concept of how Cabinet works. They clapped through an appointment they now oppose. We have ended up with competing Bills in this House on the reform of judicial appointments. What is clear is that it is time to draw a line under this soap opera.

Ms Justice Whelan has been appointed to the Court of Appeal. I have no doubt she will do an excellent job. Instead of grandstanding, I hope this House will now draw a line under this latest debacle and ensure appropriate legislation is passed once and for all. The Taoiseach and the Minister present in the Chamber have promised to have that legislation before us next week. We have much to say on its contents. I would like to have had the time to include it in my comments but I do not have the time. It also should be accompanied by the judicial standards Bill, which was originally part of the same set of legislation. If that fundamental set of changes can be brought about, some good can come from this unfortunate saga.

I wish to share time with Deputy Bríd Smith.

The row between Fine Gael and Fianna Fáil over the appointment of Ms Máire Whelan by the Cabinet to the Court of Appeal has dominated politics for six days. While there are important issues at stake, the row has taken the form of a spat between two factions of the ruling elite in this country.

The story of the Irish Judiciary and of the judicial appointments system is a story of class privilege and establishment political interests from start to finish. On the one hand in this spat, we have Fine Gael, now led by the Taoiseach, Deputy Leo Varadkar. Having recently emerged victorious from an inner party contest against another ex-private school boy and having appointed a Cabinet described by an anonymous member of his own party as lads in suits, the Cabinet which looks like a group photo before a stag party, the Taoiseach, Deputy Varadkar, has decided to stand over an old-fashioned political stroke. On the other hand, Deputy Micheál Martin and Fianna Fáil, allies of Fine Gael in implementing austerity and in attempting to hold the centre against the left, fell out with their Fine Gael allies on this issue, but their bluff has been successfully called because having voted to allow the Taoiseach, Deputy Varadkar, come to power on a Wednesday, they are not going then to bring the Government down by the weekend, and of course, Fianna Fáil, as a party of the capitalist establishment, is a beneficiary of the judicial appointments system.

In 2011, the Irish Independent estimated that 56 of the 168 judges on the Bench in this State, in other words, one third, has "personal or political connections to political parties". I can assure the House that there are no judges on the Bench who have personal or political connections to Solidarity-People Before Profit.

They could be volunteers.

The bulk of these politically connected judges are connected to Fianna Fáil and to Fine Gael.

That is an outrageous comment.

Those are the facts of the matter.

A Deputy

What about the Labour Party?

Of course, there are some Labour Party judges, that is a point, but overwhelmingly they are connected to the party on this side of the House and the party across the floor of the House, Fine Gael.

The proposal is that there would be a reform of the judicial appointments system, but even if we take away the most blatant political involvement and interest in appointing judges, we are still left with a Judiciary which is riven with class bias. The overwhelming bulk of judges in this State are barristers. This is perhaps the most difficult of all the professions for a young working-class person to which to gain access. One would have to be able to put oneself through years and years of college, then engage in an apprenticeship devilling for one year mandatory without any wage and, as I understand is the norm now in the profession, devilling for a second year without any wage. One would have to do years of college and then two years of working for nothing. How many sons of a construction worker could do that? How many daughters of taxi drivers could do that? After many years, the barristers go on to become judges where they are paid not double but triple the European average. They share the lifestyle of the ruling elite, and their vantage point for looking out on society is the vantage point of the ruling elite.

The changes that are needed regarding the Judiciary in this country go well beyond the timid reforms being proposed before the House, but we will debate that and the alternatives to it in the discussions next week.

I want to make it clear that I have no idea whether Máire Whelan is an eminently qualified judge, as is alleged by the former Taoiseach, Deputy Enda Kenny, and Deputy Brendan Howlin, but nor do I have any idea that she is not, as alleged by Deputies Micheál Martin and Jim O'Callaghan. On one level, I do not believe it really matters to most ordinary people because I believe most people are sceptical of the concept of eminence in judicial matters, and neither do most of us know whether proper procedure was followed, but we do know that the Taoiseach has said that this was all legal. Whether it was right or not is another matter entirely, and whether it was done because she was suited to it or, like all such appointments made, that the person in question was so close to those in power, she and those like her know where all the bodies are buried.

That is an outrageous comment.

I do not know; I cannot say. From what I can see, she probably is eminently qualified from that proximity to those in power and the loyalty she gives to her own class.

Like previous Fianna Fáil appointees to high positions, either as Attorneys General or judges, she has shown herself to be reliable and loyal to those who appointed her, and loyalty and reliability seem to be the only explanation for her contradictory evidence to the Fennelly inquiry.

Like Harry Whelehan in the past, who was appointed by Fianna Fáil, Máire Whelan has shown her willingness to criminalise women. Harry Whelehan stopped women trying to control their own bodily autonomy by-----

I remind the Deputy and anyone else who might wish to intervene that the statements are on the procedure for the nomination of the appointment to the Judiciary, and that is what it is about. Therefore, we must have regard to the separation of powers. I ask the Deputy and other Deputies to refrain from naming individuals.

A previously eminent Attorney General interned a 14 year old rape victim and the outgoing Attorney General, about whom the controversy is, inserted-----

The Deputy is trying to circumvent the rules. I ask her to respect the rules.

I am making a political point that there are similarities between them, particularly in how they treated women. The outgoing Attorney General included a sentence of 14 years into the recent legislation for women who take an abortion pill. Those are parallels that matter. There are also parallels in how a previous Fianna Fáil appointee prevented a former Deputy, Ray Burke, from giving evidence to the beef tribunal -----

I just reminded the Deputy that she should not name names. That is all.

I am stating facts. This is historical fact that amounts to a political point.

We were adhering to the law.

No one can dispute the facts. Whether I say them in this House or not, people out there know that they are facts. I am making a parallel between this appointment of an Attorney General by this Government and one made by a previous Fianna Fáil Government. The quality that applies on both sides of the House is that they are loyal to their class and to the people in power. They stay quiet when that is required of them. That is not to suggest that there is anything improper about that behaviour but at best it is incompetent and dishonest to the people of this country. It gives an explanation for why every time there is a kerfuffle inside this Parliament to the extent that it might bring down a Government, it relates to such an appointment because that appointment is very important to a Government. It can provide cover and it can provide the secrecy that is required.

In the few minutes I have left, since much of my time was taken, I have a suggestion for how this can be resolved. Can the newly appointed judge, Máire Whelan, give evidence to the Charleton inquiry? If she cannot, I suggest she stands down from her new appointment so that she is in a position to be interviewed by that inquiry and get to the bottom of the smear campaign against whistleblowers and the unexplained loss of mobile phones. It would be worth holding up her appointment for any evidence that she might give. Having cleared all that up, she can return to being an eminent judge, like all the other eminent judges that Fianna Fáil and Fine Gael appoint in order to ensure that the law in this country is served according to themselves. Justice is another matter.

We move on to Independents 4 Change. I call Deputy Clare Daly who may be sharing time.

Yes, with Deputy Connolly and Deputy Fitzmaurice.

I want to start by referring to some points made by Deputy Howlin. The criticism of the former Attorney General by Mr. Justice Fennelly had absolutely nothing to do with the overall scandal regarding the tape recording in Garda stations but had everything to do with the circumstances that led up to the midnight visit which led to the departure of the former Garda Commissioner, Martin Callinan. Mr. Justice Fennelly pulled no punches whatever when he said that it was inescapable that the former Attorney General presented an alarming picture. He did so, not because of the circumstances -----

Does the Deputy think she was wrong?

Absolutely, because the person had access to information which she failed to inform the Minister for Justice, Deputy Shatter -----

On another day the Deputy would have been doing cartwheels.

Deputy Daly may speak without interruption.

She failed to inform the Minister for Justice, Deputy Shatter, and failed to verify the facts of the situation with the former Garda Commissioner. Not only that, but she presented a statement to the Fennelly commission in February. She was asked to verify that statement in February, and she did. Three months later, in May, she substantially altered that written statement in order to redefine the role she played that fatal weekend.

Twisting the truth.

It was those circumstances that led Mr. Justice Fennelly to be highly critical of the individual in question. An individual with no trial experience. If this is the best person for the job, I wonder if the country is that small.

We are debating the procedure, not the individual.

Absolutely a Leas-Cheann Comhairle. I was trying to put some balance to Deputy Howlin's earlier eulogising.

The Taoiseach made the point earlier that this appointment was made legally and with the correct process. That is not the case. It is a red herring to say that it was not illegal. We know that it was not illegal because the current system of political appointments to the Judiciary, the very one the Government made such a point about changing, is very much alive and well. This was a political appointment. However, if it was the correct process, why is the Government in such a rush to change it? Why is it talking about going so far as to extend the Dáil into the recess in order to get this Bill through? Why, when the Chief Justice and the president of the Court of Appeal wrote to the Government last October and asked it to fill those vacancies, did the Government respond that it was not filling them because it was not filling any vacancies until we had a new system in place? Yet, on the eve of the summer holidays of the Court of Appeal, when it is going into recess in a couple of weeks, at the last meeting with the old Taoiseach's agenda, we have this appointment being rubber-stamped. It is an absolute disgrace.

All week, the myth has been pedalled that this is typical of the current appointment regime. That is not true. Bad as the current regime is, as Deputy O'Callaghan pointed out, practically nobody has been appointed outside of the JAAB process, except for sitting judges who are going for promotion. That is the system. It is not even within the current system. It is outside that. What makes it more galling is it is outside that with the person who was charged by the then Minister, Deputy Shatter, who set up this process, to look for expressions of interest in this job is the very person who ended up landing the job. It has caused outrage among citizens. How the Government has the brass neck to defend it is beyond me. That brass neck is equalled entirely by Fianna Fáil because the Government may have made the appointment but the only reason it stands, and the only reason that the individual has not been embarrassed into withdrawing, is because it huffed and puffed. If Fianna Fáil was really serious, it would have had a motion in here last night, a motion of no confidence in the Government which would have put an end to the matter. Those games need to be dealt with too.

I will refer to Deputy Howlin once more, I hope that he does not mind.

That he would use ten minutes to eulogise a judge and then complete this eulogy by saying that we really need appropriate legislation, captures for me precisely why Governments get away with what they get away with. Government has the power to do what it wants because the so-called Opposition is not Opposition at all. What Deputy Howlin completely ignored, as has the Government, is that the legislation exists. We do not need new legislation. We do in terms of the general reform of the system but not in relation to the appointment on an Attorney General. If Deputy Howlin looks at the Court and Court Officers Act-----

I was part of the Government that produced it.

-----specifically Part 4, he will see that it is specifically provided for. Section 17 does not allow for existing judges to go through this system.

That is the very point I was making.

I will come back to that in a minute if the Deputy could stop interrupting: he had ten minutes and I have three. Section 18 relates to the Attorney General and what should happen. There are three parts to that, two dealing specifically with the Attorney General. The board can recommend her and if she wishes to be considered, she must step outside the door.

First, why did the Government ignore that legislation particularly with a Taoiseach that is so given to history, as has been pointed out and who has employed an historian? The age of reason, where we learn, is usually considered to be 21 years. It is 21 years, just going into the 22nd year. This legislation was brought in specifically because of a debacle in which an Attorney General was involved. We fast forward 21 years later, and in that period the Government has learned nothing. It has ignored that legislation. Could the Government please clarify why that was ignored? In the Minister's history lesson on two pages, which I enjoyed, he went forward from 1922 to the present day and on into the future in relation to legislation which is nothing to do with this debacle. The Minister gave us key dates, going from Mr. Justice Garrett Sheehan's retirement on 23 March to the JAAB confirming that there was no suitable candidate, but he is not giving the whole story in relation to that confirmation. They could not nominate or recommend a sitting judge. It is very important he clarifies that. Then he goes forward to 13 June when he nominated one name. He has not explained what he did in between with the other three interested parties.

More particularly, he has not explained why the Government did not even invoke the best part of that Act. If the Government was going to do what it could anyway, why did it not invoke the best part of the Act and ask the Attorney General to step outside the door? The Minister has not confirmed how the Government dealt with the potential conflict of interest in respect of this matter. Indeed, was there one? Quite clearly, the existing and sitting Attorney General and three more parties had expressed interest in the position, so how has the former Minister for Justice and Equality, who had the responsibility to bring forward one name, resolved this? These are very practical matters and have nothing to do with the qualifications of the judge who has been elevated. This is about process, and if the Government ignores this, it does so at its peril. I will finish by quoting one of Fine Gael's former leaders. Fine Gael members held a commemoration recently in his honour or his memory. He said to a local gathering of Fine Gael members: "The party which fails to heed the people's voice will do so at its peril."

I thank Deputies Clare Daly and Catherine Connolly for sharing their speaking time with me. I wish the Minister, Deputy Flanagan, luck in his new position. He was helpful while Minister for the Department of Foreign Affairs and Trade.

Regarding these statements, most people do not question the ability of the Attorney General. It is a matter of the cronyism and the slick way in which the appointment has been made. We have seen this down through the years with the big guns in Irish politics. I sat for days in meetings on the formation of a programme for Government. Unfortunately, as was pointed out earlier, it is a big disappointment for us Independents to see the Government Independents staying very quiet about this. We have seen in the programme for Government reviews of railways, ticket scandals, helicopter services, the Common Agricultural Policy, mental health services and so on. We are a year and a few months into the current Government and nothing has changed. Principles are very important. I believe in standing up for what is right and speaking up, but there is no doubt about it, and let us be honest about it. Some of the Independents who have not said anything in recent days need to come out and state their positions. Independents, especially those in government, should distance themselves from all this. The Government Independents were at the table looking at this and listening to it. They had the opportunity to stall what has gone on. No doubt the system down through the years has been corrupt and rotten, and we need to change things very quickly. Legislation will be introduced next week, which is fine, but this debate will be over and it will be like every other week. We go from debacle to debacle, but what happens? Does one person lose his or her job? Does anyone get any wrap on the knuckles? No. It is a big hoohah for an evening like this and then nothing afterwards.

There is one group here, namely, Fianna Fáil, that has an opportunity to make sure there is transparency on this. During the week, at Leaders' Questions, the new Taoiseach, to put it simply, was not listening to Fianna Fáil. Fianna Fáil members have the trigger in their hands. They can huff and puff but, at the end of the day, it takes one thing, a bit of guts, to be like the wolf and blow the house down, and they should do that.

I am sharing time with Deputies Michael Collins and Mattie McGrath. The appointment of the former Attorney General, Máire Whelan, to the Court of Appeal has raised eyebrows, especially in my mind, due to the manner of the appointment. I have no doubt about her qualifications and I am sure she will fill her role with distinction. However, the manner and process of her appointment seem to have been premeditated and irregular. I understand her nomination was lawful in the letter of the law but it was not within the sentiment of the law. At best, it was ham-fisted and, at worst, sharp practice but within the law. We all know how matters are rubber-stamped when they are presented without prior notice, rushed and unexpected, particularly in what would have been a Cabinet meeting which was busy and high-spirited. Mature reflection, I feel, will highlight and has highlighted the deficiencies of the process of this nomination and approval. I feel the Government has been embarrassed by this flawed process which has tarnished the new Cabinet's first week in office. The Government has been forced to have this debate due to the uncertain explanation of the process which was of its making and which was the responsibility of the previous Taoiseach and the Minister for Justice and Equality. The nomination did not happen by chance or as a matter of normal routine. It was done with deliberate intent and for some political reason. Therefore, it is essential that transparent and accountable procedures are put in place for all judicial appointments from the highest to the lowest courts in the land to ensure such a controversy does not occur again.

I am glad to have the opportunity to speak on this very controversial issue. I do not question the ability of the former Attorney General, Máire Whelan, to fulfil her new position in any way, and I am sure the majority of people will agree with me on that. However, the process of the appointment of Máire Whelan to the Court of Appeal, the second highest court in this land, was nothing less than corrupt. The Courts and Court Officers Act 1995 sets out a clear procedure for the process of applying for judicial positions through the JAAB. Had Máire Whelan applied for this position through the JAAB and been duly granted a position, I do not think we would have any raised eyebrows. It was the fact the former Taoiseach, Deputy Enda Kenny, and his Cabinet wanted to secure one last stroke for their friends that it has raised eyebrows. It is a case of jobs for the boys, and the girls, in this case.

This morning, I was back in my constituency of Cork South-West, at a function, and every single person who spoke to me about this issue felt the very same way, that this appointment was rotten and another example of cronyism alive and well in Ireland. We are less than a week into the new Taoiseach's leadership and I am sure he did not imagine such a baptism of fire. The Taoiseach himself said he knew this appointment was a possibility the night before it happened. If so, I ask the Tánaiste why he did not put a halt to it then. In the Government formation talks a few weeks ago, the Taoiseach spoke and sought the support of many Independents, but he did not contact me. This led me to make the decision that I could not support the Taoiseach, and now I am very glad I voted against him last Wednesday following the events of recent days. This is not the new politics about which the Tánaiste and her Government so fondly speak.

I too am delighted to be able to speak on this matter. I invoked the lyrics of a certain song the day of the appointment of An Taoiseach, Deputy Varadkar, by a band called The Who, "Meet the new boss/Same as the old boss". The song is called "Won't Get Fooled Again". I am sure the old boss is looking in on tonight's proceedings, rubbing his hands, probably having a relaxing drink or cup of tea and remarking what a fine mess he has left the Ministers in and how they deserved it because they pushed him and pushed him and came up the hill. The Fianna Fáil lads were up his hill too but they went back down each time.

The Deputy was one of us once.

Of course I was. That is why I am delighted I am not now.

It is a good job he went over the hill on his own.


The best part of my-----


May I have extra time now?

I advise Deputies not to interrupt.

I thank the Leas-Cheann Comhairle.

I also advise Deputy McGrath not to invite interruption.

I will not invite any interruption. I am just stating facts. As I said here yesterday about the appointment of judges, I have nothing against the appointment or Ms Justice Whelan's credentials. I actually like her. She has done a lot of good work and I wish her well.

Thankfully, I opposed the Court of Appeal referendum, which very few in this House did, that set up this new Court of Appeal, of which Ms Justice Whelan is now president. However, the referendum was carried, although not by a huge majority because no attempt was made during the campaign by the then Minister, Mr. Shatter, and the Government of the time to explain what they were going to do, how many judges there would be and whether any work rate or questioning of how they would work was proposed.

The Judiciary badly needs reform, and I hope Ms Justice Whelan will lead that reform in the Court of Appeal and get some satisfaction from doing so. We cannot find out how many cases the judges have heard or what they have done since their appointments, and these do not come cheap. I also question the way in which the Judiciary has been appointed. I attended the Government formation talks. The Tánaiste was also there. The Minister, Deputy Flanagan, was not there but other Ministers were, and I wish them well in their new roles. I demanded that we have reform of the Judiciary. Deputy Shane Ross's name has been bandied around tonight. I compliment him because I fought for the same thing in parallel talks with the rural Independents, that is, reform and for it to be taken out of the grubby hands of politicians because they could not handle it. For all parties involved in government, including the coalition parties, there was a kind of barter system: you get one and I get two. That is the way it was with the previous Fine Gael and Labour Government, with Mr. High Priest Howlin from Wexford lecturing us all, or Deputy Howlin. I apologise. That is the way it was: two for one. Deputy Alan Kelly appointed all the board members of Bord na gCon and started to sack them in recent months after he had traded in people and other appointments for himself. That is the way grubby government works, so the Deputies involved cannot be wringing their hands tonight.

I am delighted that the Minister for Transport, Tourism and Sport's Bill is being fast-tracked by the Government and we all have been invited to take part in the debate by the Minister for Foreign Affairs and Trade. I look forward to it because it is high time that we had it. I have been the victim of strange decisions by judges and strange appointments. I have the history and I can give it to the House any day of the week. I will not bring it here tonight, but I have it. That is why I am so passionate about this. I was blackguarded. That is why I am not in Fianna Fáil and I have told Deputy O'Callaghan this and I will tell the party leader, if he wants to find out too. I was surprised that the party leader impugned the reputation of the former Attorney General yesterday in comparison to the other three former incumbents. I was surprised to see him go that way and I am surprised that he did not say it in Brussels tonight. We sat yesterday for almost an hour at a Business Committee meeting to schedule a debate last night. When I came into the House to speak on it, the debate was gone. The opportunity could have been had last night for Deputy Micheál Martin to be present.

There were no questions to be answered last night.

That is fine. We had agreed the way it was at the Business Committee meeting; I supported whatever was going to happen.

This reform is needed. I brought it up with the Tánaiste and I got an angry response and rebuttal. It was not going to happen. The Independent Alliance has achieved this much in government, if not much else, and I salute them for that because it was badly needed. I do not like that six lay people will be appointed by another bastion of old power, the Public Appointments Service. It will pick the six members and the lay chairperson. I do not like that because they will be all retired senior public servants. What about the ordinary people?

What about what is going on in the courts at the moment with county registrars up and down the country turfing people out of their homes? These people are ill and there have been suicides and everything else given the trauma that was visited on them following the blackguarding in the banks. We know what happened when the banks were charged in court cases. There are laws for the rich but no laws for the poor. The little people have to take their medicine. County registrars need to be reformed. The Joint Committee on Finance, Public, Expenditure and Reform and Taoiseach was informed yesterday that the registrars have no powers to do what they are doing. The chairman, Deputy McGuinness, brought in people to talk to us about the new housing Bill to try to get these people off death row. They might as well be on death row as to be waiting for the sheriff. I waved a book at the Tánaiste two years ago waiting for a sheriff. People cannot live, they cannot educate their children, they cannot feed themselves and they cannot prosper or thrive, but neither can Ireland unless we have reform of all those systems. The county registrars have no powers in those areas to grant repossession orders and they need to be challenged. People cannot get the lawyers to stand up to members of Judiciary and they will not be accepted by some judges, including one appointed by the Tánaiste. I was in the court that day. He was around this House not so long ago and he would not allow a woman who came out of prison in a prison van to have a lay litigant represent her. She could not stand up or talk------

I sounded a note of warning.

The Leas-Cheann Comhairle did and I did not mention any names.

If the caps fits, wear it. All the judges are appointed by certain parties and it is time we cleaned it up to get justice for the ordinary people. We do not want any more of this up the hill and down the hill and "We will" and "We will not". The public is sick and tired of threats by Fianna Fáil to pull down the Government and statements about issues being a resigning matter. The pipe of supply has ruptured and they now want to fix it. It has ruptured so many times now it is like a sieve. It will not break at all because they do not have the courage or conviction to call an election and let the people decide who will be in government. They did not want to be in government the last time. Deputy Martin went to Tipperary and said they did not want to be in government. The truth hurts. Deputy Martin was afraid he would get the votes and my colleagues are present to prove that. He did not want it.

We are not debating the formation of the Government; we are debating the procedure-----

I am just pointing out facts. Fianna Fáil Members are complaining about the procedure. The only problem with the procedure this time is they did not have the appointment in their hands. The procedures have to be changed - new politics my foot. We need new politics and we need a clear out of what is going on.

I wish to share time with Deputy Eamon Ryan.

When the Taoiseach commented yesterday that he would not have chosen a controversy such as this as a welcome into office, I could not help but be reminded of Albert Reynolds's statement of regret which led to the resignation of former judge, Harry Whelahan, from the High Court. Undoubtedly, there are strong historical parallels but in a way this appointment is even more controversial and tawdry than the one in 1994-95. That led to a change in the law and the introduction of new procedures in respect of the appointment to the bench of an Attorney General. Unfortunately, the lessons that were learned in 1995 have not been taken on board by the Government and those mistakes have been repeated to a large extent.

I was surprised that the Leas-Cheann Comhairle did not remind the Minister for Justice and Equality of the purpose of this session when he made his introductory remarks. These are statements on the procedures covering the judicial appointment, yet we heard precious little from the Minister about them. That is the controversy. We want to know what happened over recent weeks in respect of this controversial judicial appointment and he gave us precious little information about that. He referred to what he would do in the future but he did not provide the information required. I hope the Tánaiste and former Minister for Justice and Equality fills in the many gaps we are waiting to hear about when she contributes.

A number of key questions need to be responded to in the debate. We were told that three High Court judges applied for this position. I hope the Minister confirms that as a fact because nobody has done so. If that is the case, we do not know anything about what happened to those expressions of interest. Who received them? Were they sent to the then Attorney General? Did the Tánaiste see those applications when she was Minister for Justice and Equality? Who else in the Department saw them? What consideration was given to those applications? Were they rated or considered at all? Did the Tánaiste inform the Taoiseach of those applications? Did she inform her Cabinet colleagues about them? Where are they now? Did she just bin them or did she use a transparent process to consider them?

How did it come about that contact was made with Áras an Uachtaráin by somebody representing Government on Sunday morning, giving notice of a warrant of appointment requesting that the appointment of the new judge to the Court of Appeal be expedited? Who issued that instruction? The Taoiseach implied that it just happened that somebody in the Department of Justice and Equality or his Department did so. I cannot believe that a senior official from any Department would take it on himself or herself on a Sunday morning to make a move like this. How convenient it is that the appointment was expedited. How convenient it is that the Taoiseach and others in government were then in a position to plead the separation of powers when we tried to probe all the grubby circumstances surrounding this appointment.

It is legitimate for Members to raise concerns surrounding the handling of various issues relating to Garda whistleblowers. There are questions marks over several people associated with the Government and in government about how they have handled them. There is serious public concern about the role the former Attorney General played in that, in particular. There is also serious concern about the changing of the witness statement for the Fennelly commission and, most important, there is serious concern about the fact that Máire Whelan will be exempted from appearing before the Charleton inquiry and giving evidence. That is not accountability. This whole affair is shameful on the part of the Government.

It is right for the democratically elected representatives of the people to select our judges. It would be better if they were choosing between three people but, ultimately, that power should reside here. It has served us well, by and large, in the history of the State with the exception of the past two Governments. It is with regret that I have to come back to what Deputy Howlin said.

Those in the legal world would have a view that the hostility in the relationship between the previous Government and the judicial system was unprecedented. The key point in respect of appointments by that Government was, as Deputy Mattie McGrath said, two for Fine Gael, one for Labour - not on every occasion, but that was the basic arithmetic. Many of them were very good but the word I hear from people involved in the system is that we have not lived up to the tradition of the State in terms of really good judicial appointments.

I am afraid there are flaws in the statement by the Minister, Deputy Flanagan. In fact, we could drive a coach and four through it. I want to raise some specific points that have not been addressed. First, he stated that all necessary procedures regarding judicial appointment have been followed in this instance. While I am not an expert, we had experience in government for four years during which there were quite a large number of judicial appointments. On every single occasion, they came through JAAB and through the Attorney General's office. If there was a conflict of interest, that had to be taken account and measured in the process. Critically, and this is a political point, the Minister stated that we cannot discuss what happened in this process because of Cabinet confidentiality. I am sorry, but at the heart of this process there is one aspect that is different to anything I experienced. During our time in government, we, as a minority party, were involved in every single judicial appointment. We were fully informed and had the opportunity to agree or disagree. This was not in Cabinet - we did not have a debate in Cabinet. We decided before the relevant Cabinet meeting whether we agreed or disagreed or were happy with the names going forward.

That did not happen in this case.

Not at all. It was telepathy.

We do not require the breaching of Cabinet confidentiality. The Minister for Communications, Climate Action and Environment, Deputy Naughten, has stated that he knew nothing about the appointment. He was in an impossible position because the matter comes before Cabinet, the person who is about to be appointed is sitting there and suddenly someone asks, "Is this decided?" How could anyone say "No" when everyone is suddenly applauding? That is just wrong in terms of Cabinet confidentiality. Cabinet collective responsibility is a double-edged sword. It is a limit to one's powers but it is also the case that one has the powers but cannot operate them where some members of Cabinet turn up to Cabinet with no knowledge of what is coming in terms of such a highly sensitive appointment. That process is wrong and there are questions we need to have answered.

The key question I want answered is where is the Minister for Transport, Tourism and Sport, Deputy Ross. We are usually the last to get speaking time, except when the Independent Alliance is in the House. While he may burst through the door in the next 90 seconds, I think he has questions to answer. He had a meeting with the Taoiseach-to-be, Deputy Varadkar, on the Sunday - it was not just a phone call from Deputy Micheál Martin. The main item of the meeting was judicial appointments in exchange for support for the Government. It beggars belief that the Taoiseach, who admitted today he had a sense that this appointment was going to be on the cards, did not mention it to the Minister during the meeting to which I refer. We need to know from the Minister when he found out about this appointment or is his whole interest in judicial appointments a complete populist pretence that has now been exposed?

Hear, hear. Well said.

If he did not know about the appointment and he was sitting there in Cabinet, why did he not say "No"? Why did he not stop it if he is so concerned about the judicial appointments process? If he did know, that is even worse. We need an answer in that regard.

Why was the Minister for Communications, Climate Action and Environment, Deputy Naughten, not informed? Is that the standard operating procedure of the Government, namely, that the minority members of the coalition are not kept in the loop? From my experience, Cabinet confidentiality and collective responsibility cannot work in such circumstances. That is one of the political failings that has been exposed in this entire process. We need answers to what are perfectly valid questions. This statement does no justice to the power we need to keep, as a democratic assembly, to appoint judges. We deserve to hold on to that power but not if we pretend that due process was followed in this case. To my mind, it goes completely against the process. The decision two or three weeks earlier to appoint as judges people who, as Deputy O'Callaghan said, had not even come to the end of their terms yet calls into question Fine Gael's approach to this whole matter. What has gone on is a disgrace.

We are most fortunate to have in Ireland a strong, independent, impartial and well-respected Judiciary. I have said on many occasions, particularly in the last year when we have been discussing the new judicial appointments Bill, that we have been very well served by those who have been appointed by Governments made up of all parties.

Enshrined in Article 35.2 of the Constitution is the important principle to the effect that "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law". I call on Deputy Micheál Martin and the Fianna Fáil Party to row back on their recent attempts to denigrate the character and calibre of the former Attorney General, who is now a member of the Court of Appeal, in this House. The comments suggest that she is somehow of inferior character and ability when compared to others who were appointed to positions in the superior courts when the party opposite was in government. The comments impact on the constitutional separation of powers which exist in this State. I would ask whether Deputy Jim O'Callaghan shares these views. Does he associate himself with or disassociate himself from the views of his leader? If he shares those views, we must surmise that Fianna Fáil's real objection to this nomination is that the former Attorney General does not meet some unknown criteria his party applied to these situations when it appointed ten Attorneys General to the Bench. The Deputy has a choice: he should inform the House what those criteria are or he should disassociate himself from the comments of his leader.

At its meeting of 13 June 2017, the Government decided to nominate the then Attorney General, Ms Máire Whelan, SC, for appointment as an ordinary judge of the Court of Appeal pursuant to its prerogative under Article 13.9 and Article 35.1 of the Constitution to advise the President on appointments to judicial office. As we know, Ms Justice Máire Whelan was subsequently appointed by the President as a judge of the Court of Appeal.

Let me set out again for the information of Deputies some points in regard to this appointment. The constitutional prerogative when advising the President on judicial appointment lies with the Government alone. It is in accordance with the law and the Constitution for the Government to recommend a person to be appointed a judge of the Court of Appeal provided they are eligible and qualified, whether or not that person's name has been put forward by JAAB. The Government is obliged under section 16 of the Courts and Court Officers Act 1995 to first consider persons recommended by JAAB. However, the Government is not obliged to follow the recommendations of JAAB, nor could it constitutionally be required to do so. In accordance with practice, I referred this vacancy to JAAB and in this case, as has already been stated publicly, JAAB was not in a position to recommend any applicants for appointment to the Court of Appeal vacancy.

They never applied. That is the whole point.

Those are the facts of the situation. Where existing judges of the High Court, or any other court, put forward expressions of interest in a vacancy to the Attorney General, all such submissions are considered.

I want to be very clear about that. Of course, all such submissions are considered and are treated in a confidential manner, for very good and obvious reasons, as Deputies will agree. While, of course, such expressions of interest are always considered, constitutionally, the Government cannot be bound by any such expressions of interest in exercising its prerogative to advise the President on an appointment. It is in accordance with both the law and the Constitution to nominate a person to the President to be appointed a judge of any court. This includes the Court of Appeal, provided they are eligible and qualified. It is also in accordance with both the law and the Constitution for the Government to nominate for appointment an eligible and qualified person who is not already a judge, even if there are existing judges who have expressed an interest in the appointment.

These are the constitutional prerogatives set down for the Government. If the Deputies across favour a change in the Constitution in this area they should outline the alternative they favour.

I have had six years experience of working with Máire Whelan as Attorney General. She is a talented lawyer and a person of the highest integrity and qualities. She has directed and overseen the legal work of this State during a period of economic and social change. She has designed, picked and managed the legislation required during some of the most difficult periods in the history of the State. Deputy Howlin has outlined the range and depth of her work during her period as Attorney General. In fact, she has been the longest serving Attorney General in more than 50 years in the State. She has done all this work with skill, professionalism and admirable temperament. She does not deserve to have her character questioned in this House. The breadth and depth, the gravity, relevance, complexity and significance of her six years' experience as the constitutional legal adviser to the Government, advising on complex matters of legal and constitutional importance, ensures she is absolutely qualified.

The Government has committed to significantly enhance the judicial selection model. On 30 May 2017, the Government approved the publication of the Judicial Appointments Commission Bill, which fulfils the programme for Government commitment to introduce legislation to replace the JAAB with a new judicial appointments commission. Let me make it clear again that JAAB does not deal - and I think this was a question from Deputy O’Callaghan - JAAB does not make recommendations on judges to the Government. It deals with applications of people who are not judges. This Government set in place a procedure whereby if sitting judges wanted to express an interest they would do so through the Office of the Attorney General. Under previous Governments, what happened was there seemed to have been some system of very informal lobbying. Lobbying, as Deputy O'Callaghan and other Members know, has been quite common with regard to various vacancies. What the previous Government did was put in place a procedure to deal with expressions of interest.

And then ignored it.

No, it did not ignore it. This is not correct. It did not ignore it.

The Attorney General should have informed JAAB.

The Deputy may get an opportunity to ask questions.

As I said, there was no procedure before, and it was informal lobbying-----

What is the procedure when a judge applies?

-----it would appear, or making interests known, by judges. A procedure was put in place. It is not on a statutory basis but a procedure was put in place and the Judiciary is well aware of that procedure.

We now have the possibility of extremely comprehensive legislation coming before the House next week. Work on the new legislation will now move forward under the guidance of my colleague, the new Minister for Justice and Equality, Deputy Flanagan, and I ask all Deputies to support this legislation. I ask Fianna Fáil to support this legislation.

I reaffirm once again what the Taoiseach said earlier. There was a suitable person appointed by a lawful process. Talk here of this being outside the law or circumventing the law is not accurate. No matter how much the Opposition tries to make this into an issue different from that, what happened here was that a suitable person who was appropriately qualified was appointed to a vacancy lawfully using a correct process.

Yes, well answer the question.

I call on Deputy O'Callaghan, and others, to disassociate himself from the comments of his leader, who attempted to play the woman and not the issue.

We have 25 minutes for questions and answers, and I ask Members to respect the fact that their colleagues will want to ask questions.

Just ask questions.

I suggest short relevant questions and short relevant answers from whichever Minister decides to answer. The first indication was from Deputy O’Callaghan.

The Government is answerable to the Dáil. I set out a series of questions. I want to repeat the first two and ask the Government to answer them. Were letters expressing an interest in the Court of Appeal vacancy sent by members of the High Court? If so, who received them and when?

Sorry, Deputy O'Callaghan, can we even get an answer to that?

I will just do it my way. On 23 May, the Government nominated seven people to fill vacancies in the courts. We know from what the Minister, Deputy Flanagan, has said that JAAB reported on the Court of the Appeal vacancy on 16 May. Why was the Court of Appeal vacancy not filled on 23 May?

Two questions.

I will deal with the first question. What I made very clear in my answer is that there is a process in place if a judge, any judge, wants to express an interest in a judicial vacancy. Under previous Governments there was not a process in place. There is now a process in place, and if any judge wants to express an interest at any point, not just when he or she knows there are vacancies but in anticipation of vacancies, a judge can make his or her interest-----

Did any judges express an interest in this vacancy?

Can I make it absolutely clear that all expressions of interest that were received in respect of this or any other vacancy had been absolutely appropriately dealt with----

The Minister is not answering the question.

If so, who received them and when?

-----had been absolutely appropriately dealt with-----

Other Members will have an opportunity.

I have already-----

In this instance.

Does the Deputy want me to answer?

I have already outlined that there is a procedure in place, whereby they go to the Office of the Attorney General who then forwards them-----

Entirely outrageous. The Minister is stonewalling.

That is fine. When did she get them?

Sorry, would the Deputy mind listening to the answer?

There has to be order.

The Attorney General then forwards them-----

The Minister is not answering.

I am answering the question.

The Minister is not answering the first question.

I am answering the question.

Were letters expressing an interest in the vacancy received?

Would the Deputy allow me to finish the answer?

Tánaiste, I did say relevant questions and relevant answers.

The question is relevant.

There is an absolutely clear process. They are then forwarded-----

That is in general.

-----to the Department of Justice and Equality for the attention of the Minister for Justice and Equality. That is the procedure that is followed in all cases where-----

That is not an answer.

I must interrupt the Tánaiste. I call Deputy Jonathan O'Brien.

-----the judge expresses an interest. There is a clear procedure.

Having failed to answer my first question, the Tánaiste should answer my second question. She failed to answer the first question. She should answer the second.

I cannot be responsible but I did state clearly the answers also had to be relevant. The Tánaiste will have an opportunity if she wishes.

If the Tánaiste talks down the clock we will get no answers.

The second question was fairly simple.

There will be no talking down the clock.

Why, on 23 May, did the Government not fill the Court of Appeal vacancy since JAAB had reported to the Minister on 16 May in respect of it?

Because the matter did not arise.

There was an agenda item, which involved the filling of a number of vacancies, which did not include any reference to the Court of Appeal.

Considering JAAB had told the Minister there was a vacancy.

I call Deputy Jonathan O'Brien to ask a relevant question.

I will ask the relevant question but I hope the Tánaiste will give me the relevant answer that she did not give Deputy O'Callaghan, and that is we all know the process. The question is whether expressions of interest were made-----

-----in this particular case. It is not breaching Cabinet cabinet confidentiality to answer that. Were expressions of interest made and, if so, to whom were they made and how were they processed? That is the first question. The next question is did the successful applicant make an expression of interest and, if so, when was that made and to whom? If she did not make an expression of interest, I can only presume that somebody approached her, asking her whether she was interested in the particular position. If that is the case, when did that happen and who made that approach? My final question is about the phone call last Sunday night between Deputy Micheál Martin and the Taoiseach. Is it the opinion of the current Minister for Justice and Equality that a phone call of that nature is an attempt to influence the judicial process in terms of appointing a judge? Is it legal or illegal to do so?

I will deal with that. It is most unfair of Deputy O'Brien to seek further and more detailed information-----

That is the whole point of this debate.

-----on the matter of a phone call between two Members of this House, neither of whom are present-----

How convenient.

-----and both of whom were present during the day when this matter was mentioned. I suggest to Deputy O'Brien, in fairness to the Deputies involved, this is an issue that perhaps consideration might be given to at a further-----

I have asked the Minister for his opinion. He is the Minister for Justice and Equality.

The Minister, Deputy Flanagan, without interruption.

I asked him whether it is lawful in his opinion as Minister for Justice and Equality. I did not ask for their opinions.

I call Deputy Howlin.

Hold on, I did not get an answer.

It is absolutely farcical.

I will give the Deputy an answer. It is totally unfair in any form of due process to question me on the detail of an issue that was discussed between two Members of this House, the Taoiseach and the Leader of the Opposition, earlier today. I respectfully suggest, in the interests of due process and fairness, that the best people to whom further and more detailed questions might be addressed are the people themselves. I do not have any knowledge of the detail.

Were there other applicants?

Were there other applicants?

Answer that question or this is pointless.

The Minister without interruption.

Deputy McDonald does not like the answers.

They are not answers.

She persistently continues to interrupt in a way that ensures the process which the House has ordered to take place will not take place in an orderly manner. That suits her agenda. It suits an agenda to destabilise, obfuscate and cloud.

I must call the next question.

On the matter of expressions of interest-----

I have to be fair to all Members. I call Deputy Howlin.

There were no answers.

I have no responsibility if the Ministers do not answer the questions. I call Deputy Howlin.

It might be third time lucky.

You are a disgrace.

So far two Deputies have asked the same simple question relating to how other applicants for the same position were handled, but there has been no answer. Can we have an answer on how many other applications were received and how those applications were handled? Second, with regard to the telephone call that was made to Áras an Uachtaráin on the Sunday morning, can the Tánaiste and former Minister for Justice and Equality say who initiated the contact with Áras an Uachtaráin on a Sunday with regard to fixing a date for the warrant to be signed by the President?

I am surprised at the Deputy. He knows very well that it would be extraordinary to suggest, if that is what he is suggesting-----

I am just asking a question.

-----that there was any pressure put on the President or-----

Answer the question. It is outrageous.

-----that he succumbed.

Who initiated the contact?

The Deputy is well experienced in government. He knows quite well that we do not come to the House and talk about contact between any particular officer in a Department with the President.

Which Minister initiated the contact? Was it the Tánaiste? Did she ask that contact be made with the President?

The Deputy knows very well-----

Who? It was on a Sunday.

Let me answer. When a judge is about to be appointed there is always contact from the relevant Department, which is the Department of the Taoiseach-----

Not normally on a Sunday. The Minister knows that.

-----with the President. To suggest, first, that there is any inappropriate pressure put on the President-----

I am simply asking a question.

Did the Minister initiate it?

I already said that after the nomination of a judge contact is always made from the Department of the Taoiseach to make those arrangements. To suggest that there was any pressure-----

The Taoiseach's Department is not normally staffed on a Sunday.

-----or to say that the President in any way would succumb to pressure is outrageous and absolutely untrue. It is inappropriate to suggest it.

Were there other expressions of interest? How many expressions of interest were there?

No, I have a list here. I am going to be very fair to everybody. The next question is from Deputy Barry Cowen.

When Deputy O'Callaghan spoke on our behalf there were nine questions in his speech. He reiterated two of them and the Minister failed to answer the first and she inadequately answered the second. I will ask the third. Did the Judicial Appointments Advisory Board tell the Minister it wanted a High Court judge for the position that was available?

Does the Deputy want me to answer?

Yes. It will be the first question the Minister answers, incidentally.

The question shows a complete misunderstanding of the role of the role of the board-----

Of course it did not.

That is the question answered.

It is not its role to recommend judges to the Government.

I thank the Minister. That is all I wanted to know.

Judges do not apply to the board.

Did the Minister discuss the vacancy in the Court of Appeal with the former Attorney General prior to 23 May?

A final question from the Deputy.

Who decided the only name that would be brought to the Government and why did the Government not consider the other applicants? Who decided that only one name would be brought to the Government? Did the Minister decide it? Was it the Minister alone?

What was the first question?

The Minister actually answered two, so we are on a roll.

What was the first part of this question?

Who decided that only one name would be brought to the Government? Why did the Government not consider other applicants?

Let me be very clear, and I have said this a number of times already. All applications that were in the system were all considered and due process was, and is, always accorded to all applications that come to the Minister for Justice and Equality, whether it is via the Judicial Appointments Advisory Board or the system that is in place for judges.

So the Minister decided.

All receive due process and due consideration.

The Tánaiste, as the Minister, decided. That is great. I thank the Minister. I have a final question. Finally, who was aware-----

On a point of order-----

Sorry, Deputy, the Opposition parties are asking the questions here.

On a point of order, there has to be fairness in this process.

Deputy, have you been delegated to respond on behalf of the Government?

You said there was a list. There has to be fairness in the process.

I ask you to resume your seat.

The Deputy can use the forum of the parliamentary party to ask questions of the Minister.

I certainly cannot gazump this for you. If the Ministers ask you to respond on their behalf, and I doubt that they will, then you will intervene, but not until I call you.

Can I ask the Minister who was aware before last Tuesday of what was to happen on Tuesday with regard to this appointment?

This is your final question.

Was it just the Minister or was it the Minister and the former Taoiseach?

In this situation normal practice going back over several decades was followed. It is recorded in many different places-----

I did not ask about several decades ago, with all due respect.

-----including in academic sources. Normal practice over a long period, including during the terms when the Deputy's party was in government, has been that the Minister for Justice-----

Yes, my own brother and all the rest of it.

Why does the Deputy not listen to the reply before he starts making comments?

I am not interested in several decades ago. I am interested in who the Minister discussed this with before last Tuesday.

Yes, I am answering the question. I am telling him that there is precedent here. The Minister for Justice and Equality in consultation with the Taoiseach brings a name to the Cabinet by way of nomination. That has always been the situation-----

It was only the Minister and the Taoiseach.

-----for the personal privacy of applicants, for obvious professional and commercial reasons. Apart from anything else, this approach is central to the maintenance of the independence of our Judiciary-----

It was just the Minister and the former Taoiseach. Is that correct?

-----which we all know is recognised and highly valued.

Was it just the Minister and the former Taoiseach?

Will you give other Deputies an opportunity?

It is important that she clarify this.

Others can answer it. I call Deputy Lawless.

For the purposes of the record it should be noted that the Minister is not answering the question.

I call Deputy Lawless. I will insist that the Minister or the Tánaiste have a relevant response.

Why call that Deputy?

Their names are down.

Yes, but it is the same party.

The position is that it is when the Member indicates.

Can we get a list of the names?

The Taoiseach indicated having knowledge prior to the night of the meeting that the appointment was to occur. Who was aware before last Tuesday's Cabinet meeting that this appointment was taking place?

She answered that.

Is that the only question?

Yes. Who was aware of the appointment prior to last Tuesday? The Taoiseach has indicated knowledge. Can she advise us further on that?

She has just to clarify whether it was the current or the former Taoiseach.

When an item is on a Cabinet agenda the information relating to that is covered by Cabinet confidentiality.

Was it on the agenda?

That is the reply to the Deputy's question.

I call Deputy Breathnach. I am following the order list.

I want to return to a question that has been asked twice already, and particularly the earlier statement by Deputy Shortall. I am saddened by such a sad, sordid, shabby and shambolic exercise by the Government in terms of this judicial appointment. On the attempt to blame an Opposition party for the silly collective decision that was made, it is absolutely disgusting to hear people try to say that Deputy Micheál Martin has been-----

My specific question for the Tánaiste is whether the President's diary was changed on the Monday to facilitate the continuation of the Government trying to cover its tracks in regard to the appointment.

It is a question for the President.

I want to deal with that question because this House is doing a great disservice to the Office of the President. I refer in particular to the Deputy who is laughing merrily at the back, Deputy Shortall.

I have just said that we cannot discuss the President's diary.

Answer the question and stop obfuscating.

I want the House to be absolutely sure, and I want to refer to what the Taoiseach said here this morning, that is, that there was absolutely no attempt-----

Answer the question.

-----on the part of the Taoiseach to instruct in any way Áras an Uachtaráin or the President. There was absolutely no contact from anybody in the Department of Justice and Equality with Áras an Uachtaráin. For Deputy Shortall, Deputy Breathnach or anybody to suggest there was an attempt on the part of the Government, at any level, to characterise the relationship between the Office of the Taoiseach or the office of the Department of Justice and Equality and the Áras as one of instruction is outrageous. It is totally unacceptable for Deputy Breathnach, whom I know is not here too long and who is a Deputy of the highest standing, to make allegations such as this.

I thank the Minister for that answer.

I have two very brief questions. Why was the former Attorney General not asked to leave the room when the decision was being made? When did the former Attorney General become aware that she was going to be nominated by the Government? When precisely was she told that? Ar tháinig sé aniar aduaidh uirthi i rith an chruinnithe?

These are issues that strike at the heart of Cabinet confidentiality and I am not going to breach that doctrine. I am not going to act contrary to the Constitution. I say to Deputy Connolly what I said in my opening statement, namely that I am not in a position to go into any detail about who was in the room, who was not in the room, what was presented to those who were in the room, what was discussed within that room-----

I did not ask any of those questions.

I stand by the Constitution here. If this House decides after this debate or at any future date to change the Constitution, we know the process.

I did not ask any of those questions.

Deputy Barry may ask a short question.

I will ask one question, and one question alone. I do ask myself the question as to who gains from the appointment. I believe Ms Justice Máire Whelan gains from the appointment.

Has the Deputy a question to ask?

Politically, it is the Taoiseach, Deputy Varadkar, who gains most from the appointment because it frees up a space in the Attorney General's office so that he can put his own man from his own party background in there. My question is for the Tánaiste. When did she first discuss the issue of the appointment with the Taoiseach, Deputy Varadkar?

The Taoiseach was in the Cabinet room at the same time as all other Ministers.

Was that the first time?

He was present, obviously, for that discussion.

The Deputy asked one question.

And there was no answer.

There are other Deputies who-----

No. The question was not whether he was in the room-----

The Deputy may not override the Chair.

It was about when she first discussed the issue with the Taoiseach, Deputy Varadkar.

I call Deputy Shortall.

The Tánaiste wishes to answer.

On a point of order-----

There is no point of order.

The Tánaiste wishes to answer the question.

The clock will run down and when the five minutes are up, that is it. I call Deputy Shortall.

On a point of order-----

There is no point of order. I call Deputy Shortall.

When did the Tánaiste first discuss the issue with the Taoiseach, Deputy Varadkar?

I had no prior discussion with the Taoiseach in relation to it.

Deputy Barry got his opportunity. I call Deputy Shortall.

The Minister for Justice and Equality, Deputy Flanagan, cannot say who was in the room while the Tánaiste can say who was in the room.

I call Deputy Shortall.

When was the issue first discussed with the Taoiseach, Deputy Varadkar?

I propose that we complete the business now-----

-----unless you resume your seat. If the Deputy wants to be responsible for me concluding the business, the Deputy should be responsible.

I had no conversation with the current Taoiseach in relation to this appointment. I cannot comment further on it because, if I were to do so regarding the Deputy's question, I would be in breach of Cabinet confidentiality.

No, the Tánaiste would not.

Like the Minister for Justice and Equality, I will not do that.

The order is Deputy Brophy, Deputy Ryan, Deputy Murphy, Deputy Butler, Deputy O'Loughlin and Deputy Rabbitte. I will try to facilitate all of them.

I would like to address Deputy Shortall's outrageous allegation.

No. We have to move on. I call Deputy Brophy.

Sorry, a Leas-Cheann Comhairle, I have not asked a question.

She did not even ask a question but the Minister for Justice and Equality wants to answer it.

The Tánaiste has outlined the process for considering expressions of interest. They go to the Attorney General, then to the Department of Justice and Equality and then to the Minister for Justice and Equality. My first question is whether the Tánaiste is confirming that she is the person who made the decision to recommend the Attorney General over the three High Court judges who had expressed interest.

I am afraid that is a confidential matter. In terms of the approach that is taken to expressions of interest, there is a process that is followed in relation to the consideration of those. Normally, in consultation with the Taoiseach, a nomination is made to Cabinet.

I call Deputy Brophy.

Did the Tánaiste recommend it?

The Deputy has asked the question. I call Deputy Brophy.

I said there were two questions.

No. I have to be fair to all.

This is a farce.

Everybody else is allowed to ask multiple questions. My second relates to this-----

Ask the two together.

My second question relates to what happened last Sunday morning when there was contact between the Taoiseach's Department and the Office of the President. My question is: who initiated that contact and on what basis did he or she do that? Presumably, it was not a senior official acting off his or her own bat in doing that. On whose instruction did an official make contact with the Office of the President?

I just want to repeat again-----

The Tánaiste does not have to repeat.

There was no question of any pressure being placed on the President to make the appointment-----

I did not ask that. I said-----

Let me answer-----

Deputy Shortall-----

-----to make the appointment on a specific date.

I asked on whose direction was the-----

I have actually answered that. His only involvement was to indicate availability in his diary to attend the ceremony. It has been commonplace for judges to be confirmed by the President over the years, sometimes within days-----

The Tánaiste will not answer.

I answered the question earlier. It is sometimes within days and sometimes-----

I asked who directed the official to make contact with the Office of the President.

If Deputy Shortall is going to continue, on her head it may be if we decide to adjourn the Dáil.

It is normal practice for the Department of the Taoiseach to make contact with the President's office in order to arrange the logistics of the appointment.

I call Deputy Brophy.

May I answer that, a Leas-Cheann Comhairle?

There is only one answer.

There is no direction. There is no instruction or anything of that nature.

The Tánaiste answered the question. I call Deputy Brophy.

It is most unfair, a Leas-Cheann Comhairle, to allow Deputies to make allegations like that and not to allow an answer----

The Minister should not make any accusation against the Chair for allowing questions. Relevant questions may be asked and I would say to the Ministers that I have also asked for relevant answers. I call Deputy Brophy. Maybe the Minister wishes to withdraw the statement that I-----

Of course, but I merely ask that if an outrageous allegation has been made-----

No, no. These questions are unprecedented. I call Deputy Brophy.

I accept the Chair's ruling.

I have something to say that might anger the Leas-Cheann Comhairle but I am going to say it anyway. I am very sorry but I really believe this whole process, this version of a Star Chamber, is ludicrous.

Does the Deputy have a question?

I do have a question.

I call Deputy Eamon Ryan.


Sorry, Leas-Cheann Comhairle. This is absolutely typical of what I mean. I really mean this.

Some Deputies get four or five questions. They get to come back and then the Leas-Cheann Comhairle adjourns them. Someone says something, on the other hand, and the Leas-Cheann Comhairle dismisses the question.

They were relevant questions.

The relevant question I want to ask is what precedent exists for appointing Attorneys General to the Bench. I would like either Minister to answer it.

I want to make the point that there is no fairness in the process that is taking place here. I am the first Government backbencher to get to speak on this. We have had multiple interjections by Deputies-----

Deputy Brophy-----

That is irrelevant.

-----and it has gone all over the place. I think that is very unfair.

I remind Deputy Brophy that he is the only Government backbencher who requested to speak. His insinuation-----

There are only two of them here.


Resume your seat, Deputy Brophy.

I cannot believe Deputy Durkan did not ask a question.

Can we have peace for one minute, Deputies? Deputy Brophy is insinuating that I am not being impartial while I am in the Chair. He has stated that he was the only one I called. He was the only one who indicated. I ask him to withdraw that insinuation. Withdraw the insinuation, Deputy Brophy.

If I am the only one, I withdraw the insinuation but-----

You are the only one. I call Deputy Eamon Ryan.

Can I answer Deputy Brophy's question?

The Minister can answer the question.

Very briefly in response to Deputy Brophy, there are a number of precedents. In 1953, the former Attorney General, Cearbhall Ó Dálaigh, was appointed to the Supreme Court. In 1977, the former Attorney General, Declan Costello, was appointed to the High Court.

The law was changed in 1995.

In 1991, John Murray was appointed as a judge to the European Court of Justice. There are other examples of appointments of Attorneys General to distinguished posts both nationally and internationally.

Deputy Eamon Ryan, without interruption.

Is it standard operating practice in this Government that members of the Government within the coalition are informed of senior decisions on applications in advance? Did that happen in this case? If it did not happen, why not?

I will answer that: Cabinet confidentiality.

That is a broader question of how Cabinet operates and I am not in a position to answer that.

That is not the question.

That is not confidential. There is no harm if the Minister does not tell us, but she should just tell us. It is her prerogative not to tell us.

I call Deputy Mary Butler.

Does the Tánaiste consider it correct procedure that the Attorney General should remain at the Cabinet table during the discussion about her elevation to the Court of Appeal? Did no one at Cabinet say that this was unusual? Did no one ask the Attorney General to leave the Cabinet table when the decision was being made?

These are issues that have arisen over the past half hour. I will say again that I am precluded as a member of Government and Cabinet from entering into any discussion in this House or outside it-----

With a heavy heart, he decides-----

-----on any of the issues that were raised about who was in the room and who said what.

I cannot allow a follow-up. I am being accused of allowing a second question.

The Tánaiste can tell us who was in the room.

It is the same question. I asked whether the Minister considers it correct procedure. I would like his own opinion. Is it correct procedure that the Attorney General remained at the table while they were discussing her position?

Does he think it makes sense?

The Minister's opinion will do me.

Strong and stable Government.

I am quite satisfied that in the circumstances surrounding this appointment the correct and proper procedures were employed from start to finish.

I call Deputy Michael McGrath.

Will the Tánaiste tell the House when and in what form the former Attorney General first applied for or expressed an interest in the position in question? Will she clarify whether she is refusing to confirm to the House whether other persons expressed an interest in this position? If she is not refusing, will she please tell us when they expressed such an interest?

What I have made absolutely clear is that all applications, whether by way of the Judicial Appointments Advisory Board, JAAB, or by way of expressions of interest by the Judiciary, are dealt with appropriately and correctly. There is a procedure-----

But the Tánaiste will not confirm whether any-----

I am respecting the confidentiality of the process of-----

When did the Attorney General express an interest?

-----the appointment of judges. I would never feel that it was appropriate to give details on who or who did not apply.

We are not asking for names. We are asking whether there were other applicants.

No one is asking for names.

It has never been the practice to give any information on the numbers of judges who have applied. That is for privacy and confidentiality reasons.

There is no privacy around the former Attorney General because she was appointed. Therefore, will the Tánaiste clarify when and in what form she applied for or expressed an interest in the position? There are no confidentiality issues there. She got the job.

I call Deputy Fiona O'Loughlin-----

Please, a Leas-Cheann Comhairle. It is a very simple question.

The point I have made is that in circumstances in which there are applicants for the position of a judge, the usual procedure is that the Minister for Justice and Equality and the Taoiseach are the two people who bring that nomination to the Cabinet.

I asked when she applied.

How did the former Attorney General apply?

So she did not apply at all. The Government just appointed her.

Before I call Deputy Fiona O'Loughlin, the Chief Whip has reminded me about the time factor. It is the same as with the Order of Business. I do not want to muzzle the House on an important issue like this. Is there agreement to take the last four questions?

Four questions? Yes.

Four or five. Does the Whip have a problem with that?

We do have a time limit, do we not? We will take the four questions, of course.

It happens during the Order of Business every day. Is that agreed? Agreed. I call Deputy O'Loughlin.

There is a significant absence in the room tonight, but it is not my party leader, Deputy Mícheál Martin, as Deputy McDonald said. It is the Minister, Deputy Shane Ross, someone who has made a career out of being anti-establishment-----

Does the Deputy have a question for the Minister?

-----and being an outsider. I find it most unusual that he would not have said something at Cabinet about this decision. Why was this unusual decision on the appointment of the Attorney General taken on the same day and at the same meeting as the unusual decision made about Stepaside Garda station?

There is no connection between the two items.

I call Deputy Rabbitte.

This question I ask is not in breach of Cabinet confidentiality. If one was running the bridge club at home and there was a conflict of interest where two people were going for a job, would the committee, in good party policy, not ask the person with a vested interest to stand out of the room while the position was being discussed?

I have already said that the former Attorney General acted appropriately at all times. Beyond saying that, I am not going to breach Cabinet confidentiality one way or another by referring further to her presence or absence at the Cabinet table.

I do not know why the Minister showed up this evening.

I call Deputy Murphy and then Deputy O'Keeffe.

There will be very short answers to these questions if they are answered directly and straight. We need to ask questions of the Taoiseach. The Ministers are here representing the Taoiseach tonight. Fair enough, he cannot be here. Was the Taoiseach made aware at any stage that three other judges had expressed an interest in this job? When exactly did the Taoiseach know or become aware that Ms Whelan was to be given the job? When I think back correctly to Tuesday, the Taoiseach gave two different answers. If the records are checked, he said Sunday evening and then he said Monday morning. If the questions are answered correctly and straight, I will be quite happy. Also, did the Attorney General apply for the job?

I have already answered with regard to the Taoiseach-----

Current or past Taoiseach?

I assume it is the current Taoiseach the Deputy is asking about.

The current Taoiseach. With regard to the details of the Deputy's question, all of the circumstances, memoranda and discussions around an appointment that is discussed at Cabinet are covered by Cabinet confidentiality. That is the reality of the situation.

Did the former Attorney General apply for the job?

The Minister did not answer one of the questions. Did she apply?

I call Deputy Kevin O'Keeffe.

Prior to the Cabinet meeting, did the Tánaiste, the Department or Department officials speak to other Ministers, in particular the Independent Ministers, about bringing this proposal to the Cabinet? Did the Tánaiste have discussions with other Cabinet members before the Cabinet meeting about this proposal?

Following an amendment to the Constitution by the insertion of Article 28.4.3o, Cabinet discussions and documentation disclosing Cabinet discussions are absolutely confidential and cannot be disclosed. The same doctrine obviously applies to Cabinet committees. The word "discussions" as it is covered, and this is the reality of the situation, referred to by the court refers to the oral exchange of views by members of the Government at meetings of Government and extends to discussion at Cabinet and the content of discussions so I am not in a position to reply to that question.

For the record, I did not enter into any discussions with any of my ministerial colleagues about this issue.

I do not wish to detain the House. It is the longest day of the year and I do not wish it to be the longest night of the year for the Tánaiste and Minister for Justice and Equality but could the Tánaiste or the Minister enlighten us? So many questions have been asked about Stepaside Garda station. I know it was debated around the time of the programme for Government. When was the decision to reopen Stepaside Garda station taken and when will we see the reopening of the other five stations that were promised in the programme for Government? It might enlighten many people.

I do not know about the relevance of it but if the Tánaiste or Minister wishes to answer it, they can.

As I previously explained, an interim report was received which recommended the reopening of Stepaside Garda station. It also recommended that the reopening of a number of other stations should be considered and that a further final report would come at the end of June. There was also a recommendation that a Garda station should be opened in Dublin Airport and Dublin Port.

That concludes statements. Can I say to those who might have suggested that I was less than impartial that I accept their withdrawals, be they by word or nod?

The Dáil adjourned at 10.55 p.m. until 12 noon on Thursday, 22 June 2017.